Judges Doing What Judges Do: A Unified Theory of the 2020 Election Season

Dozens of judges, from all political persuasions, uniformly rejected the extravagant claims of President Donald Trump to set aside the presidential election results, or to compel Republican state legislatures to deliver their electors to him. Even with the last case dwindling in the Supreme Court, it is clear that the naked appeal to the partisan background of judges fell flat. Within the legal profession there is a sense of satisfaction that the judiciary as an institution held firm and that the rule of law was vindicated. But why? Surely there must be some reason other than the donning of robes that produced this result. Why did judges not play to the role that politics seemed to ordain?

If we go back to this past summer, there would have been no such rose-tinted account of the judiciary. Indeed, the courts appeared a bastion of the Republican assault on the right to vote. Courts were routinely rejecting claims of needs to change election proceedings in order to accommodate COVID concerns. Most notably the Supreme Court rejected alterations of Wisconsin procedures to allow absentee ballots to be mailed in and counted after election day. The Governor had even unilaterally sought to postpone the scheduled primary and Supreme Court elections – with some suspicion that partisan motives may have been at play. While the postponement of the election did not get to the Supreme Court, the Court ruled 5-4 to strike down altering the finality of Election Day. For Justice Ginsburg, the Court majority showed indifference to both public health and the right to vote. Similar charges accompanied court rejections of changes to the number of drop boxes in Texas and other late efforts to expand voter access through either court order or executive command.

What changed after the election?

Perhaps some of the judicial repudiation of President Trump has to do with simple pride of office. Every courtroom lawyer knows that even a receptive judge needs to be given the tools to tender a favorable ruling and yet maintain craft integrity. The sheer incompetence of the parade of Trump lawyers no doubt offended even those judges recently appointed by the President himself.

But perhaps there is less inconsistency between the rulings that caused so much consternation on the political left back in the spring and summer and those post-election day rulings that sealed the fate of a politician seeking to unwind a seven million vote deficit and an Electoral College pummeling. In both periods, courts proved to be defenders of preexisting institutional arrangements against claimed needs to emergency alterations. It may be that the courts changed less than the identity of the parties proclaiming the emergencies. Given the case-by-case nature of adjudication, courts rarely have the luxury of providing a complete theory of law as they attend to the disputes before them. But a logic emerges from this election season’s stress test that integrates a longstanding jurisprudence of elections.

A quarter century ago, in a pair of cases arising from Alabama local elections, federal courts began to identify a reliance interest of voters – not candidates, or political parties, or (heaven forbid) other states – in following rules set out ahead of time that told them what they must do as citizens in a democracy. The claim was not equal protection or even the likelihood that an election would yield an erroneous result. The courts grounded this right in due process and found that electoral participation could fit, perhaps not seamlessly, within the core entitlements of citizenship. The ensuing reliance interest was a brake on the risk of electoral manipulation by those with power seeking to frustrate the exercise of the franchise. Certainly many rules of election administration curtail access to voting, starting with the need to set a closing time for the polls. But voters have a right to rely on the polling site staying open until 8 as advertised, and not shutting suddenly at 5 pm. Reliance means states and localities must set the rules, broadcast what they are, and not change them, especially once the risk of manipulating the outcomes presents itself.

Many of the recent court decisions turned on defects of the Trump strategy. The claimed violations of voting rules may have been known before the votes were cast and thus brought too late (the technical term is laches), or there may have been particular sensibilities when federal courts are asked to intervene in state electoral practices, particularly on election eve. But behind such technical rulings lies a deep sense that ordinary citizens cannot have their ability to vote snatched away and they rightly believe the ability to select those who govern them is their guaranteed due. No less than selectively denying citizens the ability to vote, precipitously changing up the way in which they participate is a constitutional insult. As Justice Kavanaugh wrote in rejecting the Republican effort to rejigger Wisconsin election procedures before the presidential election: “When an election is close at hand, the rules of the road should be clear and settled.”

There is a broader lesson for those seeking to reestablish normalcy after Trump. There may be a rush to expediency in a return to power, from fantasies about court packing to quixotic efforts to abolish the Electoral College. That is and should be the domain of politics, even though a polarized country and Congress makes such undertakings inevitably fraught. But in the meantime, the judiciary showed the independent value of institutional stability even amid a pandemic and a presidentially-led assault on the very foundation of democracy.

 

Editor’s note: For a different perspective, readers may be interested in Jonathan Manes’ The System Is Not Working: The Lopsided Election Result, Not The Courts, Saved Our Democracy.

Photo credit: Edward Olive/EyeEm – Getty Images

 

About the Author(s)

Samuel Issacharoff

Reiss Professor of Constitutional Law at New York University School of Law.